Emo Oil Ltd v Mulligan

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 29 November 2010
• Neutral Citation: [2010] IEHC 543
• Court: High Court
• Date: 29 November 2010

[2010] IEHC 543

THE HIGH COURT

[Insolvency Proceedings 538 P]

Emo Oil Ltd v Mulligan

IN THE MATTER OF A PETITION FOR ADJUDICATION OF BANKRUPTCY BY EMO OIL LIMITED

PETITIONER

AND

EAMON MULLIGAN

DEBTOR

EEC REG 1346/2000 RECITAL 6

EEC REG 1346/2000 RECITAL 8

EEC REG 1346/2000 RECITAL 4

EEC REG 1346/2000 RECITAL 12

EEC REG 1346/2000 RECITAL 16

EEC REG 1346/2000 ART 2

EUROFOODS IFSC LTD, IN RE 2004 4 IR 395 2005 1 ILRM 161 2004/17/3963 2004 IESC 45

EUROFOOD IFSC LTD, IN RE 2004 4 IR 370 2004/18/4004 2004 IEHC 607

EUROFOOD IFSC LTD, IN RE 2006 CH 508 2006 3 WLR 309 2006 AER (EC) 1078 2006 ECR I-3813 2006 BCC 397 2006 ILPR 23

BANKRUPTCY ACT 1988 S14(1)

BANKRUPTCY ACT 1988 S11(1)

BANKRUPTCY ACT 1988 S14

BANKRUPTCY ACT 1988 S44(2)

EEC REG 1346/2000 ART 3(1)

EEC REG 1346/2000 RECITAL 13

Banking law - Bankruptcy - Debt - Centre of main interests - Insolvency - Northern Ireland - Council Regulation EC No. 1346/2000 ( Insolvency Regulation) - Ireland - Whether courts had jurisdiction

Facts: The petitioner filed a petition for an adjudication of bankruptcy in respect of a debt in the sum of Eur 235,001.68. The petitioner relied on the failure of the debtor to pay this sum. He had been adjudicated bankrupt in Northern Ireland and the petitioner decided to proceed with the application for bankruptcy in Ireland on the basis that his centre of main interest was in Ireland. The Court considered whether he would proceed with the petition in light of the provisions of Council Regulation EC No. 1346/2000.

Held by Dunne J. that having regard to the information supplied, it was not an appropriate case in which to recognise the adjudication by the courts of Northern Ireland. The centre of main interests was in the jurisdiction at the time of the making of the Bankruptcy Order.

1 JUDGMENT of Ms. Justice Dunne delivered the 29th day of November 2010

2 The petitioner herein filed its petition for an adjudication of bankruptcy against Eamon Mulligan in respect of a debt in the sum of €235,001 68. The debt arose on foot of a judgment of the High Court dated the 10 ^th February, 2009, in proceedings bearing the Record No. 2008/33S, Between Emo Oil Ltd, plaintiff and Eamon Mulligan trading as Mulligan Oils, defendant. In addition to the sum of €235,001.68, the petitioner was awarded costs, to be taxed and ascertained.

3 The petitioner relied on the failure of the debtor to pay the said sum on foot of a bankruptcy summons issued on the 18 ^th May, 2009. The summons was served on the debtor on the 30 ^th July, 2009. An affidavit of service of the summons was filed on the 15 ^th October, 2009 and the petition to have the debtor adjudicated bankrupt was filed on the 21 ^st October, 2009.

4 The petition was first listed before the court on the 16 ^th November, 2009, and on that date and on the 14 ^th December, 2009, new return dates were granted. The matter came back before the court on the 8 ^th February, 2010. The matter was adjourned by consent on that date and again on the 12 ^th April, 2010. A notice of appointment of solicitor was furnished to the Examiners office by McDonough and Breen solicitors, Distillery House, Main, Dundalk, Co. Louth on the 5 ^th February, 2010.

5 Following the service of the petition on the debtor, the matter was listed before the court on the 8 ^th February, 2010, the 12 ^th April, 2010, the 10 ^th May, 2010 and the 14 ^th June, 2010. Ms. Elizabeth Deegan, the credit controller of the petitioner, in an affidavit sworn herein on the 28 ^th September, 2010, has averred that on each occasion the matter was adjourned before the court, the request for an adjournment was made by or on behalf of Mr. Mulligan, "albeit with consent from the petitioner on some occasions". It appears that when the matter was adjourned on the 10 ^th May, 2010, the debtor had offered a monthly payment of €2,000 to the petitioner and the matter was adjourned to allow the debtor to put forward a better offer. On the 14 ^th June, 2010, the debtor informed the court that he had made an offer of monthly payments in respect of his liability in the sum of €3,000 but that this had been refused. He also indicated that he was attempting to refinance and that he hoped to be in a position to clear or settle the liability. In those circumstances the matter was adjourned by the court on the basis that Mr. Mulligan would have a further opportunity to refinance his borrowings and to discharge his debts. For that reason an adjournment was granted until the 26 ^th July, 2010. Prior to that date, a fax was received from solicitors for the debtor dated the 22 ^nd July, 2010, which stated:-

"We refer to the above and we understand that it is again in the bankruptcy list on Monday next. We are now instructed that our client was adjudicated bankrupt in Northern Ireland on the 7 ^th July, 2010."

6 In those circumstances an application was made by counsel on behalf of the petitioner to adjourn the matter until the 18 ^th October, 2010, for the purpose of considering their position. On that date they sought to proceed with the application for bankruptcy on the basis that the debtor's centre of main interest is in Ireland. The matter was put back for the purpose of allowing the parties to furnish legal submissions to the court. Another of the reasons for that adjournment was to enable the debtor to file an affidavit in response to the affidavit of Ms. Deegan.

7 It would be helpful to refer to two paragraphs in the affidavit of Ms. Deegan. At paras. 12 and 13 of the affidavit she states as follows:-

"I say that the petitioner does not understand how the plaintiff could have established that his centre of main interest was in Northern Ireland. I say that at no time during any correspondence between Mr. Mulligan and the petitioner, (including the furnishing of various financial information by Mr. Mulligan) was it ever indicated that Mr. Mulligan had any interest in any assets in Northern Ireland or that Mr. Mulligan resided there or had any material, personal or business interests in Northern Ireland. In this regard it beg to refer to the copy letters on the 16 ^th September, 2009 and 22 ^nd September, 2009, attached hereto and marked with the letters "ED3" upon which I have signed my name prior to the swearing hereof detailing assets owned by Mr. Mulligan and in particular his interest in the property at 31 Marian Park, Dundalk, Co. Louth and Tateera, Newtownbalregan, Co. Louth and as well as enclosing yearly accounts and tax returns filed with Revenue in the Republic of Ireland."

8 I say that O'Donovan Baker, Solicitors for the petitioner, wrote to Mr. Mulligan's solicitors on the 20 ^th August, 2010, outlining there intention to proceed with the within bankruptcy petition and also calling on Mr. Mulligan to outline how he is claiming his centre of main interest to be in Northern Ireland and furnishing details of the matters which he claims could justify such an assertion ...."

9 Ms. Deegan went on to exhibit a copy of that letter in her affidavit. Mr. Mulligan in his replying affidavit deals with these matters in the affidavit sworn by him on the 28 ^th October, 2010. He stated as follows:-

"Ms. Deegan avers that the petitioner was never told that I had assets in Northern Ireland (I do not), that I resided in Northern Ireland (I do) or that I had any personal or business interest in Northern Ireland (I hold a taxi licence). I am not sure whether or not I told the petitioner that I resided in Northern Ireland, but then I am not sure I ever had cause to. It is certainly the case that the business address from which I operated was situated at Tateetra, Newtownbalregan in Dundalk and it may be that the petitioner thereby assumed I resided in the jurisdiction or assumed that if I worked here that I also lived here. In short the petitioner was wrong to make any assumption or assumptions."

10 He went on to say that he has resided in Northern Ireland since 2002. He went on to assert that it is on the basis of his residency in Northern Ireland that the courts in that jurisdiction made an order adjudging him bankrupt on the 7 ^th July, 2010. He added:-

"In terms of proving that I was and had for some considerable time being resident in Northern Ireland the court there required that I produce documentation that proved residency. In that respect I provided a taxi driver's licence issued by the DVL NI in May 2003, a letter from the electoral office for Northern Ireland dated 15 ^th October, 2010, a document dated 15 ^th August, 2008, described as a "basic disclosure certificate" and a polling card for elections in November, 2003.… I say that the court in Northern Ireland accepted that this documentation was sufficient to prove that I reside in Northern Ireland and I say that this documentation is in fact proof of same."

11 He added that his fuel distribution business at Tateetra, Newtownbalregan in Dundalk ceased to operate in 2010.

12 The question that now arises in these proceedings is whether or not the petitioner can proceed with the bankruptcy petition in this jurisdiction. To that extent Council Regulation (EC) No. 1346/2000 of the 29 ^th May, 2000, ("the Regulation") on Insolvency Proceedings is of considerable importance. I now want to look at the provisions of the Regulation in some detail. The recital of the Regulation states at para. 6:-

"In accordance with the principle of proportionality this Regulation should be confined to provisions governing jurisdiction for opening insolvency proceedings and judgments which are delivered directly on the basis of the insolvency proceedings and are closely connected with such proceedings. In addition, this Regulation should contain provisions regarding the recognition of those judgments and the applicable law which also satisfy that principle."

13 Recital 8...